Fry 'Em? Even Sex Offenders Can Be Punished Too Severely

Jacob Sullum

3/7/2007 12:00:00 AM - Jacob Sullum

New York is about to become the 20th state with a civil commitment program for sex offenders, thereby embracing an increasingly fashionable contradiction: When sex offenders are caught and convicted, the government says they're responsible for their actions, so it locks them up. But after they serve their time, it says they can't control themselves, so it locks them up some more.

After nearly two decades of forcibly "treating" sex offenders deemed especially likely to commit new crimes, it seems clear that psychiatrists are not psychics, treatment is an expensive failure and "commitment" is a euphemism for imprisonment.

Since 1990, when Washington state enacted the first civil commitment law for sex offenders, nearly 3,000 have been confined in mental health facilities after completing their sentences. According to The New York Times, only a tiny fraction of them have been pronounced "cured" enough to be released.

There's little evidence the two major treatment approaches, "relapse prevention" and cognitive-behavioral therapy, reduce recidivism. Yet civil commitment coupled with ineffective therapy costs, on average, four times as much as ordinary imprisonment -- $166,000 per year in California, for example, compared to $43,000 for prison.

That's a lot to spend on incapacitation, especially since states do not seem to do a very good job of committing the most dangerous offenders. Sometimes exhibitionists are confined while rapists go free. Some sex offenders who avoid commitment soon claim new victims, while some men currently committed (including a 102-year-old in Wisconsin) are too old or sick to pose much of a threat.

The U.S. Supreme Court has upheld civil commitment of sex offenders on the grounds that it is therapeutic and preventive rather than punitive. But the therapy is a sham, and the preventive rationale could be applied to a wide variety of criminals, all of whom have demonstrated a tendency toward anti-social behavior and many of whom are at least as prone to recidivism as sex offenders are.

Instead of punishing people for crimes they might commit in the future, why not punish them for crimes they've already committed? If certain offenses merit a life sentence, which is what you often get when you tack indefinite civil commitment onto a prison term, that penalty should be imposed explicitly and with due process.

But it's important to keep in mind that "sex offenders" are a highly diverse group, ranging from teenagers who have consensual sex with younger teenagers to men who rape and murder children. Arizona provides an excellent example of how not to draw the appropriate distinctions.

Under Arizona law, mere possession of pornography involving minors younger than 15 is punishable by a 10-year mandatory minimum sentence. Each picture is a separate offense, and the sentences must be served consecutively. That's how Morton Berger, a former high school teacher, received a 200-year sentence without parole: 10 years for each of 20 images on his computer.

While the production of child pornography involves sexual abuse, Berger himself did not victimize anyone. He arguably deserved criminal punishment for encouraging abuse, in his own small way, by downloading the resulting images (although it's not clear he paid for them). But 200 years ?

That's far longer than the sentence Berger would have received anywhere else in the country. It's also harsher than Arizona's penalties for violent crimes such as rape and second-degree murder. For looking at pictures of sexually abused children, Berger was punished more severely than he would have been for committing an actual sexual assault on a child.

The Arizona Supreme Court, in a decision the U.S. Supreme Court recently declined to review, nevertheless concluded that Berger's sentence was not disproportionate enough to violate the Eighth Amendment's prohibition of "cruel and unusual punishments." Constitutional issues aside, the penalty is plainly irrational.

That's par for the course on this hot-button subject. When I discussed Berger's case on Reason magazine's blog, one reader insisted that "200 years is not sufficient. He should get life."